A local judge ruled Monday that a new state law granting exclusive authority to the state attorney general in collateral review of death penalty convictions violates the state constitution.

Shelby County Criminal Court Division 1 Judge Paula Skahan’s ruling now allows Shelby County District Attorney General Steve Mulroy to represent the state in proceedings for a writ of error coram nobis petition that was filed by Larry McKay, a man that has been on death row for nearly 40 years. 

The state is expected to file an appeal to Skahan’s ruling by Aug. 14, said Robert Hutton, McKay’s lawyer.

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Although the ruling applies to this case specifically and is not binding on other state trial courts, it will set a precedent for other cases, Hutton said.

He said that there are 40 pending similar cases in the state that the law could affect. 

“There are a whole host of issues this could affect,” he said. 

If the ruling is affirmed by the state Court of Criminal Appeals, it would then be binding on other courts, Hutton said.

But to appeal, Hutton said the state will first have to ask Skahan’s permission to send the case to the appeals court, which he said she has indicated she’s open to doing. He also said he has no objection to the case moving forward in that way.

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The appeals court will have to decide whether to take the case, which Hutton said is also likely. 

“Whether they will or not is their discretion. But this kind of case is the kind they usually take,” he said. 

Gov. Bill Lee signed the new law on April 28. It amended the Tennessee Post-Conviction Procedure Act and gave exclusive authority to the state attorney general to defend the state during collateral review proceedings in certain death penalty cases. 

Essentially, this means that the new law applied to other challenges to death penalty convictions beyond initial appeals of the sentence. 

As stated in the new law, collateral review refers to “any proceeding… including a petition requesting analysis of evidence, a proceeding under T.C.A 39-13-203, a proceeding under T.C.A. 40-26-105, a proceeding involving a challenge to a capital inmate’s competency to be executed, and any other judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.”

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The original intent of the law was much different. It centered on rape kit backlogs but was amended to grant exclusive authority to the state attorney general in collateral review of death penalty convictions in the state.

McKay originally filed the coram nobis motion on March 30, citing new evidence found in his case that could potentially prove his innocence. He filed the challenge to the state law on May 1, just days after Lee signed it. Mulroy joined the motion the same day. 

McKay has been on death row since 1984. He was convicted after being charged with murdering two people during an armed robbery. A state response to Hutton’s initial complaint details the incident over which he was charged. It says two witnesses identified McKay and he was located in a car with two guns matching the caliber of ammunitions found at the crime scene. 

McKay was seeking to have State Attorney General Jonathan Skrmetti dismissed from the case on the grounds that the new law violated the state constitution. His motion specifically referenced Article 6 Section 5 and Article 2 Section 17 of the constitution.

Article 6 Section 5 gives district attorneys general in the state the power to represent the state in any circuit or district court having criminal jurisdiction. Article 2 Section 17 prohibits bills from having more than one subject and for a bill’s title to express its subject or be amended.

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McKay had argued that law “addresses more than one subject and the caption is overly broad,” per the text of Skahan’s ruling. 

Mulroy also argued that by circumventing his authority, it was nullifying the will of voters who elected him because the state attorney general is appointed rather than elected.

The state argued the new law did not violate the constitution and McKay could not prove injury from it.

Skahan ruled Monday that McKay and Mulroy had standing to challenge the law and that it violated Article 6 Section 5 of the state constitution, both of which the state had disputed. But she didn’t side with the claim against Article 2 Section 17. She did not rule on Mulroy’s voting rights issue. 

Skahan said because the state law was signed April 28 and the motion to have Skrmetti removed was filed May 1, the claim was “untimely” and “without merit.” She also wrote that any issue with the caption of the new law was “cured” when it was signed into law.

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She did not rule on Mulroy’s voting rights issue, citing that constitutional issues need only be considered when “absolutely necessary,” per case law in the state. Because she already determined the law violated Article 6 Section 5, she found it was not necessary to rule on Mulroy’s claim.

“This Court determined the Act violates the plain language of Article 6 Section 5 of the Tennessee Constitution, which has the effect of disposing this case in its entirety. As such, it is not absolutely necessary to address the additional voting rights issue. Accordingly, the issue of whether the Act unconstitutionally encumbers voting rights is pretermitted,” Skahan wrote in the ruling.